Manager’s assumption of pending retirement leads to age discrimination

A federal government employee has been awarded $25,000 for age discrimination after she was denied a chance to take advantage of a retirement incentive by giving her job to another employee under a workforce adjustment directive.

Diane Legros, 67, worked as a senior policy analyst at the Canadian Border Services Agency (CBSA). In the federal public service since 1989, she joined CBSA in 2011 through a staffing process.

In the 2011-12 fiscal year, the federal government implemented a deficit reduction action plan that required all public service agencies to reduce staff and government spending. Part of the plan involved a “workforce adjustment directive” to maximize employment opportunities for any public servants who wanted to remain in the public service but had their jobs eliminated by finding alternative employment whenever possible.

In addition, employees who were close to retirement were given an incentive — a cash payment based on years of service — if they gave up their positions to employees whose jobs were being cut. This directive was incorporated into the government’s various collective agreements. Any employee wishing to leave the public service could post his position on a government website — the process was called alternation — and management would decide if anyone applying was suitable.

In 2012, Legros was 62 years old but she wasn’t prepared to retire because she had taken extended medical leave from 2006 to 2009, during which she had lost income and incurred medical expenses. So Legros was interested in the incentive because the cash payment could allow her to retire.

However, Legros’ manager refused her request as it had been decided Legros’ position could be eliminated as part of the cost-cutting since Legros was likely close to retirement.

But Legros felt her position was too important to be eliminated, and she had never indicated her intention to retire anytime soon.

On the recommendation of a union representative, Legros posted her position anyway, believing the collective agreement and the workforce adjustment directive allowed her to do so. When management saw it, they removed it from CBSA’s website.

But Legros received about 15 applications for her job, which she sent to her manager, who informed the employees that the alternation of Legros’ position had not been approved. Legros filed a grievance against the decision to deny the alternation and claimed she was being discriminated against because of her age.

There were many grievances filed regarding the workforce adjustment directive, and in April 2013, an adjudicator determined there was nothing in the directive’s wording that said a department could consider its future planning in the context of an alternation, and a proposed alternation could only be blocked if the employee in question had given a notice of resignation of retirement.

Legros’ union representative advised her of the decision and recommended she resume her alternation steps. Her manager was told by human resources that she had to review any applicants for Legros’ position, but the manager still felt it would be problematic as Legros’ job was to be eliminated when she eventually retired.

The manager reviewed the applicants but found none were qualified for the position, mostly because they didn’t have experience developing and implementing policies and procedures governing CBSA real property management activities — a qualification Legros hadn’t been required to have when she started and wasn’t in the official job description, but the manager decided was important because of the uniqueness of CBSA’s real property, such as border controls.

Legros spoke to her manager on June 18, 2013, and was told her position would still be eliminated once she retired and it would be pointless to send her any more applications.

CBSA took Legros’ grievance to the final level of the grievance process and determined that an alternation for her position could occur. However, Legros filed a second grievance as there was no acknowledgment that the agency had discriminated against her based on her age and her manager’s attitude made an alternation impossible — she didn’t interview any candidates and never sent them the requirements of the position in advance.

Board weighs in

The Public Sector Labour Relations and Employment Board found Legros’ age played “a major role in the employer’s decision” regarding alternation. Legros was identified as someone whose position could be eliminated soon as she would retire shortly, but Legros had not indicated any plans to retire.

This was “the stereotyped view of (Legros) as being of a certain age and retiring soon” that hinted at discrimination right off the bat, said the board. This was important because the Supreme Court of Canada had established that “an employer’s perception of a medical condition is just as important as the condition itself” and the same could be applied to another protected ground.

The board also found that once the employer considered Legros’ grievance and determined she was entitled to an alternation, Legros’ manager “did everything in her power to prevent one from taking place.” The manager’s failure to review the applicants and addition of an experience qualification that hadn’t been in place for the position before showed “blatant bad faith” and was related to Legros’ age, said the board.

“(The manager) continued to view (Legros’) position as one that she did not want to fill because, in her view, it would no longer be funded after (Legros) departed,” said the board.

“Once again, she was counting on (Legros) retiring, which she could not have contemplated with such certainty had (Legros) been 10 or 15 years younger. In other words, the benefit continued to be denied, and (Legros’) age was certainly a factor.”

The board found the manager didn’t allow the alternation because she was convinced Legros would retire soon — a discriminatory decision based on Legros’ age.

Because CBSA allowed the manager to continue to hold up the alternation, even after the grievance, that warranted extra damages as well, said the board.

CBSA was ordered to pay Legros $15,000 for the age discrimination and another $10,000 in special compensation for pain and suffering and the denial of potential retirement with the incentive because of “the wilful and reckless refusal to adhere” to the workforce adjustment directive’s principles.